About this Author

Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @CopyfightLawMeme

September 07, 2004

Hatch's Hit List #42 - Microsoft Music

Posted by Ernest Miller

What is Hatch's Hit List? Sen. Orrin Hatch (R-UT) has introduced the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) in the Senate. The bill would make it illegal to "intentionally induce" copyright infringement, but is worded so broadly that it would have all sorts of unintended consequences, one of which is to severely limit, cripple or kill innovation in many different fields. Hatch's Hit List is a daily exploration of some of the technologies and fields that the bill would likely affect. See also, Introducing Hatch's Hit List and the Hatch's Hit List Archives. Send list suggestions to ernest.miller 8T aya.yale.edu.

I almost didn't add this to Hatch's Hit List. I thought, "explaining to people how to make legal use of their systems ... that goes a bit far, doesn't it?" Silly me. Of course it doesn't go too far.

Last week, as everyone knows, Microsoft soft launched its entrant into the online music store business, MSN Music Preview. Of great interest for many, were the instructions Microsoft provided for those who wanted the music they purchased from MSN's music store to play on the Apple's iPod.

Tech support for Microsoft's new MSN Music service is responding to the incompatibility between its downloads and the iPod by advising its customers to burn the downloads to CD, then rip the CD to a compatible format:

Although Apple computers and Apple iPods do not support the PC standard WindowsMedia format for music, it is still possible to transfer MSN Music downloads to an iPod, but it will require some extra effort. To transfer MSN-downloaded music to an iPod, you need to first create a CD with the music, and then you need to import that CD into iTunes. This process will convert the music into a format that can play on the iPod. We're sorry that this isn't easier - unfortunately Apple refuses to allow other companies to integrate with the iPod's proprietary music format. If you are an iPod owner already and unhappy about this policy, you are welcome to send feedback to Apple requesting that they change their interoperability policy.

Well, I should have realized that Microsoft would soon see the error of their ways. According to an article in Salon (annoying reg. and ad required for non-subscribers), Microsoft has changed its tune (One music store to rule them all):

I also contacted a Microsoft representative to ask about the curious advice they were giving to users. And that's when Rob Bennett, the senior director of MSN Entertainment, responded in an e-mail that the whole thing was something of a mistake. "I'm reviewing the language on the preview site now," he wrote. "We absolutely don't want to encourage people to circumvent the usage rights for music downloads. It is unfortunate that Apple still disables Windows Media support in the iPod (the firmware they license from PortalPlayer actually supports WMA but they turn it off), restricting their customers' choice of where they download music. Our approach is very different, encouraging broad choice of many music services and many portable audio devices with the Windows Media format."

When I later checked the MSN Music help site, the advice Microsoft was giving to its iPod customers had been changed. Now, instead of counseling users on how to have MSN's songs play on their iPod, the site simply provides an e-mail address for people to complain to Apple. It also says, "There are more than 70 portable audio devices that support MSN Music today, and we hope that someday Apple decides to join with the industry and support consumer choice." [links omitted]

Hmmm, sounds very close to an admission that telling people what they can legally do with their DRM'd music might encourage them to infringe. If Microsoft is worried, imagine how worried some joe noting this process on their blog should be, under the INDUCE Act.

This one is perhaps too much of a reach. Take care in asserting that extensions of licensed uses can ever constitute an infringement. Once a copyright owner grants a license, the issues sound more in contract than copyright. Microsoft's licensing of the work, including the right to sublicense, probably renders the conduct of the BURN-RIP-and-iPOD completely noninfringing, however unpalatable that may be to the copyright concerns. Accordingly, inducing noninfringing conduct raises few if any issues.

True, which is why I hesitated to post this. However, based on "all relevant information" one might convince a jury that the real reason a defendant is providing information for legal uses is to encourage illicit ones. Certainly, it isn't clear to me that one could have a cased dismissed based on the fact the conduct one is encouraging is legal, but may make infringing conduct easier.

Ernest Miller: "one might convince a jury that the real reason a defendant is providing information for legal uses is to encourage illicit ones"

You could argue both ways: on the one hand, the fact that Microsoft is such a staunch fan of DRM, should make it clear to users and juries alike that they are not proposing infringement.

On the other hand, Microsoft are proposing usage that Apple clearly doesn't desire (perhaps did not foresee either), and that Apple uses DRM for to stem. Microsoft's support for DRM should have made it clearer to them that they are effectively advocating infringement. As a fan of DRM, they should show extra caution, a bit like say a fireman could be expected to show extra caution when lighting the barbecue.

(Copyfight has an article on how the RIAA sees INDUCE as an instrument only to be used against those who oppose DRM. Do US judges usually find in favour of those who paid for a bill?)